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1 Appendix A State Medical Malpractice Reforms EXPLANATION OF METHODS USED BY OTA TO COMPILE DATA The tables, figures, and accompanying notes in appendix A were derived from a variety of sources and synthesized by OTA to reflect the most recent information available on selected State medical malpractice reforms. The primary published sources were 1991 and 1993 editions of a compendium developed for the Federal Agency for Health Care Policy and Research (AHCPR), 1 selected State statutes. and judicial cases. Two additional sources were used to update. cross-check, and supplement the AHCPR compendia. 2 After compiling information from these sources into summary tables, OTA sent draft copies of the information to the attorneys genera] in all 50 States on March 24, 1993, for confirmation or amendment. Information was changed to reflect respondents comments. Where conflicts arose between the attorney general response and information found elsewhere. the attorneys generals responses were favored. Unresolved questions were addressed through follow-up phone conversations with attorney general respondents and statutory research. The revised drafts were sent again to all 50 State attorneys general on June 25, 1993, for a final review and any corrections were incorporated. For States that responded to the first survey only. information is current to March For States that responded to the second survey. information is current to June For the 10 States 3 that did not respond to either review and the District of Columbia, information was cross-checked and supplemented through followup telephone calls and/or review of the relevant State codes where possible. Where confirmation was not possible, information in this appendix reflects that presented in the 1993 edition of the AHCPR compendium. 1 us Dcpar(mcnt of Hca]th and Human SCrViCCs, Agency for Health Care Policy and Research, ( Conlpcndium of State Systcms for Resolution of Medical Injury Claims, prepared by S.M. Spernak, Center for Health Policy Research, The Gctorgc Washington University (Rockville, MD: AHCPR, April 1993), AHCPR Pub. No ; U.S. Department of Health and Human Services, Agency for Health Care Policy and Research, Conlpcndium of State Systems for Resolution of Medical Injury Claims, prepared by S.M. Spcrnak and P.P. Budc[ti, Center for Health Policy Research, The George Washington Univcrsi[y (Rockvillc, MD: DHHS, February 1991), DHHS Pub. No. (PHS) Thcsc sources were: Fisk, M. C., The Reform.Juggcrnau[ Slows Down, The National Law Journal 15(10): 1,.34-37, NOV. 9, 1992; Amcriczm Nurses Asst~cia{ion, Rcpor[ [o ANA Board of Directors on Tort Reform, Part 3: Prcscnta[ion of Sclcctcd Summary of State and Local Legislation Related to Tort Reform and Rc\icw of Insurance Company Practices and Policies Related to Nursing Ncgligcncc with Rccom-mcndations,( D~ccml]cr 19[)1. ~DE, FL, HI, KS, KY,Mf$, NJ, NM, TX, Wv. -77-

2 78- Impact of Legal Reforms on Medical Malpractice Costs Table A-l--Collateral Source Offset Provisions, a by State, 1993 Mandatory Discretionary No provision co* CT FL 1A IL* ID KS O * MA* ME Ml MN* MT* NJ NM NY OH* RI* TN UT AK* AL AZ CA DE IN KY MD* ND O * OR SD AR DC GA O HI LA MO* MS NC NE NH o NV* OK PA o SC TX VA v-r WA* WI WV ath e traditional collateral source rule forbade evidence of the plaintiff s Collateral sources of income and reimbursement (e.g., medical insurance, disability payments) from being entered into evidence, States classified as mandatory or discretionary in this table have modified the traditional evidence rule to allow certain types of collateral sources to be admitted as evidence. Statutes which require that the plaintiff s award be offset by certain collateral sources are classified as mandatory, Statutes that leave the decision of whether to offset to the jury or judge are classified as discretionary, States with no provision have not modified their traditional collateral source rules, It is of note that a number of States reduce the malpractice award by the collateral source payments, but credit the plaintiff with any premiums he or she has paid or will pay to obtain the insurance (e.g., MN, Ml, CT, Rl, IL and NY). O = provision overturned, * See additional notes on following pages. SOURCE: Office of Technology Assessment, 1993.

4 80- Impact of Legal Reforms on Medical Malpractice Costs ADDITIONAL NOTES FOR TABLE A-1 (Continued) North Dakota--Under North Dakota law, collateral source does not include life insurance, other death or retirement benefits, or any insurance or benefit purchased by the party recovering economic damages (N. D.C.C. Sec (Lexis 1991). (An earlier collateral source offset provision was overturned in the courts--see above.) Ohio--Collateral sources do not include insurance benefits paid for by plaintiff or employer (Ohio Rev. Code Ann. Sec (Baldwin 1992)). Rhode Island--Collateral source is mandatory if evidence is admitted (R. i. Gen. Laws Sec (1992)). Washington--Washington s statute allows information on collateral source to be entered into trial, except the collateral source rule excludes insurance purchased by the plaintiff or insurance purchased by the employer for the plaintiff (RCW Sec ). However, offset of collateral sources is governed by case law, and in practice there is no offset for collateral sources. See Sutton v. Shufelberaer, 643 P.2d 920 (Ct. App. Wash. 1982); Bowman v. Whitelock, 717 P.2d. 303 (Ct. App. Wash. 1986). SOURCE: Office of Technology Assessment, 1993.

5 Appendix A--State Medical Malpractice Reforms -81 Table A-2--Caps on Damages a and State Patient Compensation Funds, by State, 1993 Economic and No statutory PCF (Patient Noneconomic cap noneconomic limits Compensation Fund) AK: $500,000 CA: $250,000 FL: O $350/250,000 Hl: $375,000 ID: o $400,000 KS: O $250,000 MD: $350,000 MA: $500,000 MO: $465,000 OR: $500,000 UT: $250,000 WV: $1,000,000 Wl: $1,000,000 AL: : O Total recovery capped at $1 mill ion.* co: Total recovery capped at $1 million. $250,000 cap on noneconomic. * IN: $750,000 LA: $500,000 NE: $1,250,000 NM: $500,000 SD: $1,000,000 VA: $1,000,000 AR AZ CT DC DE GA 1A I LO KY ME MN R MS MT NC *ND O NH O NJ NV NY OH O OK R PA RI SC TN *TX o v-r WA O WY FL: Physicians may participate in fund by obtaining Iiability coverage of $250,000 per claim and $500,000 per occurrence. Fund will pay malpractice awards exceeding maximum physician liability of $250,000 per claim, up to $1 million per claim and $3 million aggregate per policy. IN: Provider not liable for that portion of any malpractice award which exceeds $100,000 Any amount due the plaintiff which is in excess of the total liability of all health care providers, shall be paid from the PCF, with total payments from the PCF not to exceed $750,000. KS: Physicians must carry $200,000 in malpractice insurance per claim ($600,000 per annum) then can choose one of three options for excess coverage from PCF. For each, option, the physician pays the initial $200,000 in damages and then the fund will pay some portion of the remainder depending on how the physician chooses to distribute fund liability across potential claims: 1) fund liable for next $100,000 per claim ($300,000 aggregate per provider); 2) fund liable for next $300,000 ($900,000 aggregate per provider); and 3) fund liable for up to $800,000 per claim.

6 82. Impact of Legal Reforms on Medical Malpractice Costs Table A-2-Caps on Damages a and State Patient Compensation Funds, by State, 1993 (Continued) Economic and No statutory PCF (Patient Noneconomic cap noneconomic limits Compensation Fund) LA: Provider liability limited to $100,000 for injuries or death to plaintiff. Fund will pay total amount recoverable for all injuries or death of a plaintiff exclusive of future medical care and related benefits, up to $400,000 for private providers. The State pays all damages up to $500,000 for State health care providers. NE: The PCF shall cover liability exceeding $200,000 up to $1.25 million. NM: Health care provider liability is capped at $100,000, with the remainder to be paid by the PCF. Total payment from PCF not to exceed $500,000 per occurrence per year. PA: SC Wl: The fund shall pay any amount exceeding $100,000 per occurrence, up to $1 million per claim. The fund will pay awards in excess of $100,000 per claim (no upper limit). Physicians must have $400,000 of malpractice coverage per incident and $1,000,000 in coverage per annum. The fund will pay for damages exceeding the physician s coverage. Each health care provider is also assessed an annual fee to help finance the fund. anote: OTA s review did not include caps that apply only, or separately, to claims against State-employed or Stateowned health care providers. O = provision overturned, R = provision repealed. *See additional notes on following pages. SOURCE: Office of Technology Assessment, 1993.

8 84- Impact of Legal Reforms on Medical Malpractice Costs ADDITIONAL NOTES FOR TABLE A-2 (Continued) cording to the State s adjustment of the average annual wage (Idaho Code Sec (Lexis 1993)). Kansas--Original cap for malpractice suits only was overturned (see above). Existing cap applies to all personal injury suits. Louisiana--The total amount of damages for a medical malpractice claim against a qualified provider may not exceed $500,000, plus interest and costs, exclusive of future medical care and related benefits. Qualification under the patient compensation fund requires a private health care provider to pay into the fund and provide evidence of insurance up to $100,000 per claim. Qualified providers exclude State health care providers. For qualified providers, the provider is liable for up to $100,000 and the State patient compensation fund for the remaining amount not to exceed $400,000 exclusive of future medical care and related benefits. For State health care providers, total damages, exclusive of future medical care and related benefits, may not exceed $500,000 (WR.S. Sec. 40: ; IA-R.S. Sec. 40: ) Future medical expenses and related benefits in excess of $500,000 are paid as submitted. Massachusetts--Pain and suffering capped at $500,000 unless there is substantial or permanent loss or impairment of bodily function or substantial disfigurement or other circumstances making limitation unfair (Mass. Gen. Laws Ann. ch. 231, Sec. 60H (Lexis 1992)). Michigan--Noneconomic damages limited to $225,000 unless there has been a death, intentional tort, injury to reproductive system, foreign body wrongfully left inside the patient s body, concealment of injury by health care provider, limb or organ wrongfully removed or patient has lost vital bodily function. The limit on damages increases each year by the increase in Consumer Price Index (M.C. L. SOURCE: Office of Technology Assessment, Sec (1990)). The exceptions to the cap are so extensive that, as of August 1993, the cap had yet to be applied to a single case (154). Missouri--Noneconomic damages recoverable by injured party capped at $465,000 per defendant per occurrence (1993 limit). Original limit was $350,000, but this is adjusted annually to reflect changes in the implicit price deflator for personal consumption published by the U.S. Department of Commerce (R. S.MO., Sec (1986)). New Mexico--The limitation on caps on damages does not apply to past and future medical care and related benefits (N.M. Stat. Ann. Sec. 41-5%, (Michie 1989)). These expenses will be paid on an ongoing basis. In 1995, the cap on damages will be increased to $600,000 and the Patient Compensation Fund will require the physician to be responsible for the first $200,000 of a malpractice claim (N.M. Stat. Ann. Sec (Michie 1989)). North Dakota--Awards in excess of $250,000 may be reviewed for reasonableness (N.D. C.C. Sec (Lexis 1991)). South Dakota--South Dakota s medical malpractice cap is currently being challenged in the court on constitutional grounds (Schultz, J. S., Legal Counsel, Division of Administration, Office of Administrative Services, Department of Health, South Dakota, letter to the Office of Technology Assessment, U.S. Congress, Washington, DC, April 2, 1993). Texas--The $500,000 limit on damages in medical malpractice (Vernon s Texas Civil Stat. Art. 4590i, Sec (Supp. 1992)) was struck down as unconstitutional in Lucas v. U. S., 757 S.W.2d 687 vex. 1988). The Texas Supreme Court subsequently decided that the damage limitation was constitutional in wrongful death cases only (Rose v. Doctors HOSP., 801 S.W.2d 841 (Tex. 1990)).

12 88- Impact of Legal Reforms on Medical Malpractice Costs Table A-4--Statutes of Limitations, a by State, 1993 (Continued) Years within Years within Maximum number Foreign object date of injury date of discovery of years exception** VT: 7 years VA: 10 years 1 year WA: 1 year 8 years 1 year WV: 10 years WI: 1 year 5 years 1 year WY: years Explanatory Notes for Table A-4 Column 1: Statutory time limit for bringing a suit is measured from the time the injury occurs or from the date of termination of the medical treatment that led to the claim. Column 2: The statutory time limit for bringing suit is measured from the time at which the plaintiff could have reasonably discovered the injury. Often States allow the time limit to run from either the time of injury or the time of discovery, depending on the nature of the injury. Column 3: The maximum period in which a claim can be brought, regardless of whether the limit is measured from the date of injury or act or the date of discovery. In most States, this maximum does not apply to the foreign body exception (see column 4). Column 4: Because of the difficulty of discovering a foreign body (e.g., a surgical sponge) left inside a patient during invasive procedures, a number of States make special exceptions to the statute of limitations for these cases. athis table does not cover special provisions for minors, disabled plaintiffs or cases involving fraud Or concealment on the Pan of the healthcare provider, O = provision overturned. * See additional notes on following page. ** Wdhin year of discovery, maximum number of years do not apply unless stated, SOURCE: Office of Technology Assessment, 1993,

13 Appendix A--State Medical Malpractice Reforms -89 Selected Additional Information: ADDITIONAL NOTES FOR TABLE A-4 Alaska--General statute of limitations is two years from date the cause of action accrues (Alaska Stat. Sec (1962)). Cause of action does not accrue until person discovers or reasonably should have discovered injury. (Dalkovski v. Glad, 774 P.2d 202 (Alaska 1989); Cameron v. State, 822 P.2d 1362 (Alaska 1991)). Georgia--The statute of limitations in a medical malpractice action may be tolled (i. e., does not accrue) in cases where the parties agree to submit the case to arbitration (0. C.G.A. Sec ). Louisiana--Time limitation is suspended upon filing a request for review by a medical review panel until 90 days following issuance of the panels opinion (la-r.s. 40: A (2)(a); LA-R.S. 40: A (2)(a)). Michigan--Special exceptions made in cases involving undiscovered injuries to reproductive system or the presence of a foreign body wrongfully left inside the patient, and in cases where the discovery of basis for claim was prevented by the fraudulent conduct of the health care provider (M.C. L. Sec a(2) (a-c) and (3) (1990)). Claims may be brought two years from injury if discoverable or six months from discovery, whichever is later (M.C.L. Sec (4) (1990)). Minnesota--Statute of limitations is from termination of treatment (Minn. Stat. Sec (1992)). Discovery rule has been rejected (Francis v. Hansing 449 N.W. 2d 479 (Minn. Ct App. 1989); Willette v. MaVo Foundation, 458 N.W. 2d 120 (Minn. Ct. App. 1990)). New Jersey--Years within date of injury apply after accrual of claim (N.J. Rev. Stat. Sec. 2A: 14-2 (1986)). Claim accrues upon reasonable discovery of injury. New Mexico--The statute is tolled upon submission to pretrial screening panel and shall not run until 30 days after panel makes final decision (N. M. Stat. Ann. Sec (Michie 1989)). Ohio--Suit must be brought within one year from the date of a cognizable event or termination of the physician-patient relationship, whichever occurs later (Flowers v. Walker, 589 N.E.2d 1284 (Ohio 1992); Frvsinqer v. Leech, 512 N.E.2d 337 (Ohio 1987)). Oklahoma--Oklahoma s statute includes a limitation on damages brought after the injury, but limitation declared unconstitutional. Wofford v. Davis, 764 P.2d 161 (Okla. 1988); Revnolds v. Porter, 76o P.2d 816 (Okla. 1988). Texas--Statute has been held unconstitutional by the Texas Supreme Court when the injury was not discoverable (See e.g. Neaale v. Krusen, 678 S.W.2d 918 (Tex. 1984); Neaqle v. Krusen, 678 S.W.2d 11 (Tex. 1985); Deluna v. Rizkallah, 754 S.W.2d 366 (App. 1st Dist. 1988); but see Rascoe v. Anablawi, 730 S.W.2d 460 (App. 9th Dist. 1987)). The courts have essentially modified the statute into a discovery standard. SOURCE: Office of Technology Assessment, 1993.

15 Appendix A--State Medical Malpractice Reforms -91 Cases Overturning Pretrial Screening Panels: ADDITIONAL NOTES TO TABLE A-5 Florida--Aldana v. Holub, 381 So.2d 231 (Fla. 1980). lllinois--bernier v. Burrio, 497 N.E.2d 763 (Ill. 1986). Missouri--State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner, 583 S.W.2d 107 (Me. Bane. 1979). Pennsylvania--Mandatory nonbinding arbitration panel provision struck down by Pennsylvania Supreme Court in Mattes v. Thompson, 421 A.2d 190 (Pa. 1980) and Heller v. Frankston, 475 A.2d 1291 (Pa. 1984). Rhode island--boucher v. Saveed, 459 A.2d 87 (R ). Wyoming--Hoem v. State, 756 P.2d 780 (wyo. 1988). Selected Additional Information: Alaska--Mandatory unless the parties agree to arbitrate or the court determines an advisory panel is not necessary (Alaska Stats. Sec (Lexis 1992)). Colorado--Court may refer cases for mediation at its discretion (Colo. Rev. Stat. Sec et. seq. (1992)). In addition, the State requires in every action against a licensed professional that the plaintiff file a Certificate of Review declaring that the plaintiff has consulted a person with expertise in the area of the alleged conduct and the expert has concluded that the filing of the claim does not lack substantial justification (Colo. Rev. Stat. Sec (1987)). Delaware--Any party can demand that a claim be submitted to a malpractice screening panel. Results are admissible as prima facie evidence at any subsequent trial. Expert witness testimony may be required for panel (Del. Code Ann. tit. 18, Sees (1976)). Hawaii--Mandatory submission of claim to medical conciliation panel but decisions, conclusions, findings, or recommendations of panel are not admissible at trial (Hawaii Rev. Stat. Sees et. seq. (Lexis 1992)). Idaho--Proceedings of informal pretrial screening are confidential and not admissible at any subsequent trial (Idaho Code Sees (1976)). Illinois--The State requires medical malpractice plaintiffs to file an affidavit and report of a reviewing health care professional supporting his or her determination that a meritorious cause of action exists. This may be referred to as a certificate of review (735 ILCS 5/2-622 (West 1992). Kansas--Decision of panel is admissible at subsequent trial (Kan. Stat. Ann. Sees (1987)). Louisiana--Pretrial screening mandatory unless both parties agree to waive it (La- R.S. Sec. 40: B(C). Maine--Mandatory pretrial screening, except if parties agree to waive. Decision is admissible in subsequent trial only if unanimous and unfavorable to claimant as to negligence or causation (24 Me. Rev. Stat. Ann. Sec (1990)). Maryland--All medical injury claims must be submitted to a health claims arbitration panel for review prior to trial, unless all parties agree in writing to waive the requirement (which rarely occurs). Although this is called an arbitration panel, it operates more like a pretrial screening panel, with very formal rules of discovery and procedure. The Panel s decision on fault and is admissible at subsequent trial and is presumed to be correct (Md. Cts. & Jud. Proc. Code Ann. Sec. 3-2A43 to 46 (Michie 1989)). The statute was un-

16 92- Impact of Legal Reforms on Medical Malpractice Costs ADDITIONAL NOTES TO TABLE A-5 (Continued) successfully challenged by plaintiffs on constitutional grounds, Attorney General v. Johnson, 385 A.2d 57 (Md. 1978) appea/ dismissed 439 U.S. 805 (1978). Massachusetts--If the panel finds for the defendant and the plaintiff goes to court, they must first file a bond of at least $6000 that will be payable to the defendant if plaintiff ultimately loses bond covers court costs and fines. For indigent plaintiffs, the amount of the bond may be reduced, not eliminated (Mass. Ann. Laws ch. 231, Sec. 60B (Lexis 1992)). Nebraska--Parties can agree to waive the panel (Neb. Rev. Stat. Sec (4) (1988)). New Hampshire--Decision of panel not admissible at subsequent trial (N. H. Rev. Stat. Ann. Sec. 519-A:l to -A:1O (1972)). New Mexico--Decision of panel not admissible at subsequent trial (N. M. Stat. Ann. Sec (Michie 1989)). New York--A precalender conference in each malpractice case is mandated by law in order to promote settlement, simplify issues and set a timetable for discovery and further judicial proceedings. There is no formal hearing on the merits of the case (N.Y. CPLR Sec (McKinney 1985)). North Carolina--Pilot program (ends in 1995) in which parties to Superior Court civil litigation may be required at the court s discretion to attend a pretrial settlement conference conducted by a mediator (N.C. Gen. Stat. Sec. 7A-38(1991)). Pennsylvania--Panels providing mandatory nonbinding arbitration were ruled unconstitutional (see above). However, these panels continued to exist and hold voluntary nonbinding settlement conferences. In addition, some jurisdictions have standing judicial orders for pretrial settlement conferences for all medical malpractice cases. Vermont--[ implementation of the following provisions (part of a law passed in 1991) is contingent on future passage of a universal health care coverage plan.] Requires all medical malpractice claims be submitted to nonbinding arbitration prior to a trial. Parties may agree in advance that the arbitrator s decision will be limited to matters of law. If parties do not agree to make the arbitration decision binding, they can proceed to trial. Arbitration decision is admissible at trial but is not definitive (12 V.S.A. Sees. 701 et seq. (1991 )). Washington--Mandatory mediation of all medical malpractice claims prior to trial. Results not admissible at subsequent trial unless both parties agree (State of Washington, Engrossed Second Substitute Senate Bill 5304, 53rd Legislature, 1993 Regular Session). Wisconsin--Repealed VOI untary pretrial screening provision and replaced with mandatory mediation for all medical injury claims ((Wis. Stat. Sees (1977--repealed in 1986; Wis. Stat. Sees et seq. (1985--amended 1989)). SOURCE: Office of Technology Assessment, 1993.

17 Appendix A--State Medical Malpractice Reforms -93 Table A-6--Attorney Fee Limits, a by State, 1993 Court-determined/ Sliding scale Maximum % court approved No statutory limits CA: 40% of first $50, % of next $50, /0 of next $50, /0 damages that exceed $600,000 CT: 33.33% of first $300, /0 of next $300,000 20% of next $300,000 15% of next $300,000 10% damages that exceed $1.2 million DE: 35% of first $100,000 25% of next $100,000 10% of damages that exceed $200,000 IL: *33.33% of first $150,000 25% of next $850,000 20% of damages exceeding $1 million MA: 40% of first $150, % of next $150,000 30% of next $200,000 25% of damages that exceed $500,000* ME:33.33% of first $100, A of next $100,000 20% of damages that exceed $200,000 IN-15%* MI-33.33% OK-500/o TN-33.33% UT A AZ HI 1A KS MD* NE NH O * WA AK AL AR co DC FL R GA ID KY LA MN MO MS MT NC ND NM NV OH OR R PA O RI SC SD TX VA VT NJ: of first $250, A of next $250, A of next $500,000 Amount shall not exceed 25 /0 for a minor or an incompetent plaintiff NY: 30 /0 of first $250, /0 of next $250, /0 of next $500,000 15% of next $250,000 10% of damages exceeding $1.25 million

18 94- Impact of Legal Reforms on Medical Malpractice Costs Table A-6--Attorney Fee Limits, a by State, 1993 (Continued) Court-determined/ Sliding scale Maximum % court approved No statutory limits Wl: 33.33% of first $1 million OR 25% of first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial and 20% of any amount exceeding $1 million anote. Most attorney fee limits are not direct limits on the amount attorneys can charge their ClientS. Rather, they are limits on the portion of the damage award that may go toward attorney fees, O = Provision overturned, R = Provision repealed. * See additional notes on following page. SOURCE: Office of Technology Assessment, 1993.

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